BC Andaman v Xie Ning Yun: Anti-Suit Injunction & Arbitration of Blue Canyon Country Club Dispute

In [2017] SGHC 64, the High Court of Singapore addressed an application by BC Andaman Co Limited, Legacy Resources Limited, Ace United International Limited, Legacy Resources (Thailand) Co Limited, and Murex Co Limited for a permanent anti-suit injunction against Xie Ning Yun and Lee Lye Wah Janice. The plaintiffs sought to restrain the defendants from pursuing proceedings in Thailand that breached an arbitration agreement related to the Blue Canyon Country Club in Phuket. The court granted the injunction for BC Andaman, Legacy Resources, Ace United, and Legacy Resources (Thailand), but denied it for Murex Co Limited, and declined to grant a declaration that all claims in connection with the Blue Canyon Country Club had been dismissed with prejudice.

1. Case Overview

1.1 Court

High Court of the Republic of Singapore

1.2 Outcome

Permanent anti-suit injunction granted to BC Andaman, Legacy Resources, Ace United, and Legacy Resources (Thailand); denied for Murex Co.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore court grants anti-suit injunction to restrain Thai proceedings breaching arbitration agreement in Blue Canyon Country Club dispute.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
BC Andaman Co LimitedPlaintiffCorporationPermanent anti-suit injunction grantedWon
Legacy Resources LimitedPlaintiffCorporationPermanent anti-suit injunction grantedWon
Ace United International LimitedPlaintiffCorporationPermanent anti-suit injunction grantedWon
Legacy Resources (Thailand) Co LimitedPlaintiffCorporationPermanent anti-suit injunction grantedWon
Murex Co LimitedPlaintiffCorporationPermanent anti-suit injunction deniedLost
Xie Ning YunDefendantIndividualPermanent anti-suit injunction granted againstLost
Lee Lye Wah JaniceDefendantIndividualPermanent anti-suit injunction granted againstLost

3. Judges

Judge NameTitleDelivered Judgment
Quentin LohJudgeYes

4. Counsels

Counsel NameOrganization
Sarjit Singh GillShook Lin & Bok LLP
Jamal SiddiqueShook Lin & Bok LLP
Probin DassShook Lin & Bok LLP
Charles LimShook Lin & Bok LLP
Raymond WongWong Thomas & Leong

4. Facts

  1. The Sias invested in Murex through Legacy Resources Limited and were appointed as directors of Murex.
  2. The Sias entered into a joint venture with Deutsche Bank AG to re-develop the Blue Canyon Project.
  3. Ace United International Limited took out a loan from Deutsche Bank AG, secured by charges over the Sias’ shares in Legacy.
  4. Deutsche Bank AG assigned its interest in the loan and share charges to Prominent Investment Opportunity VI Limited.
  5. Prominent Investment Opportunity VI Limited enforced the Legacy Charge, removing the Sias as directors of Legacy and Ace.
  6. The Sias commenced proceedings in the BVI against multiple parties, alleging a conspiracy to perpetrate the Alleged Coup.
  7. The Sias commenced arbitration proceedings in Singapore against several parties, alleging an unlawful coup.
  8. The Sias discontinued the SIAC Arbitration Proceedings after an order for costs was made against them.
  9. The Sias commenced proceedings in Thailand against several parties, including the Plaintiffs, relating to the Blue Canyon Project.

5. Formal Citations

  1. BC Andaman Co Ltd and othersvXie Ning Yun and another, Originating Summons No 884 of 2016, [2017] SGHC 64

6. Timeline

DateEvent
Sias invested in Murex through Legacy Resources Limited.
Sias entered into a joint venture with Deutsche Bank AG.
Ace United International Limited took out a loan from Deutsche Bank AG.
Amended and restated shareholders’ agreement signed.
Deutsche Bank AG assigned its interest in the Bridge Loan and the Share Charges to RREEF Global Opportunities Fund II LLC.
RREEF Global Opportunities Fund II LLC transferred its shares in Ace United International Limited to True Colour Global Limited.
RREEF Global Opportunities Fund II LLC assigned its interest in the Bridge Loan and the Share Charges to Prominent Investment Opportunity VI Limited.
Prominent Investment Opportunity VI Limited demanded repayment of the Bridge Loan by Ace United International Limited.
Prominent Investment Opportunity VI Limited appointed receivers in and over Legacy Resources Limited.
Sias commenced proceedings in the High Court of Justice of the BVI.
Sias commenced the First Thai Proceedings in the Civil Court of Southern Bangkok.
BVI Stay Applicants applied to the BVI High Court to have the BVI Proceedings stayed.
Pacific Alliance Asia Opportunity Fund LP applied to the BVI High Court for a stay of the BVI Proceedings.
BVI High Court recorded a consent order between the Sias, the BVI Stay Applicants and Pacific Alliance Asia Opportunity Fund LP.
Sias commenced arbitration proceedings in Singapore under the Rules of the Singapore International Arbitration Centre.
SIAC Respondents applied to the Tribunal for security for costs.
Sias submitted their response to the applications for security for costs.
Deutsche parties informed the Tribunal that they intended to address the issue of the BVI Costs.
Parties made their submissions on the applications for security for costs at a preliminary meeting.
Deutsche parties submitted an application for payment of the BVI Costs.
Sias issued their comments on the application for payment of BVI Costs.
Tribunal issued its decision on the applications for security for costs and for payment of the BVI Costs.
Sias informed the Tribunal that they had decided to discontinue the SIAC Arbitration Proceedings.
Tribunal rejected the allegation that there had been a lack of fairness.
Deutsche parties denied that the proceedings had been unfair towards the Sias.
Sias noted that they had set out their position in their letter dated 11 January 2016, namely, that they sought an order from the Tribunal that the SIAC Arbitration Proceedings were “at an end”.
Tribunal made a proposal to declare the proceedings closed.
Parties agreed that the Tribunal could declare the proceedings closed.
Tribunal declared the proceedings closed.
Sias commenced the Second Thai Proceedings in the Civil Court of Southern Bangkok.
Tribunal issued its Final Award, dismissing the Sias’ claims in the SIAC Arbitration Proceedings with prejudice.
First Thai Proceedings were adjourned for four months.
Plaintiffs initiated the present proceedings by filing OS 884/2016.
After hearings on 6 and 29 September 2016, Chua Lee Ming JC granted such an interim anti-suit injunction in favour of Legacy and Ace but declined to do the same for Andaman, Legacy Thailand, or Murex.
Second Thai Proceedings had been adjourned for hearing.
Sias discontinued the Second Thai Proceedings as against the Deutsche parties but had taken steps to serve the papers in the Second Thai Proceedings on Legacy and Ace.
Judgment was ready for handing down.
Summons 5557/2016 taken out under OS 764 and Summons 5558/2016 taken out under OS 840 were fixed for hearing.
Parties appeared for substantive argument on OS 764, OS 840 and OS 944.
Sias wrote to the court to request for further arguments.
Further hearing was held.

7. Legal Issues

  1. Anti-suit injunction
    • Outcome: The court granted a permanent anti-suit injunction to restrain the defendants from commencing or pursuing proceedings in breach of an arbitration agreement.
    • Category: Procedural
    • Sub-Issues:
      • Breach of arbitration agreement
      • Vexatious and oppressive conduct
  2. Enforcement of Arbitration Agreement
    • Outcome: The court enforced the arbitration agreement, granting an anti-suit injunction to prevent proceedings in a foreign court.
    • Category: Substantive
    • Sub-Issues:
      • Scope of arbitration clause
      • Validity of arbitration agreement
  3. Privity of Interest
    • Outcome: The court found that Murex did not have sufficient privity of interest with other parties to the arbitration to invoke the final award.
    • Category: Substantive
    • Sub-Issues:
      • Non-signatories to arbitration agreement
      • Alter ego doctrine

8. Remedies Sought

  1. Permanent anti-suit injunction
  2. Declaration

9. Cause of Actions

  • Breach of Contract
  • Conspiracy
  • Breach of Fiduciary Duty

10. Practice Areas

  • Arbitration
  • Commercial Litigation

11. Industries

  • Hospitality
  • Real Estate

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Castanho v Brown & RootHouse of LordsYes[1981] AC 557United KingdomCited for the principle that an anti-suit injunction can be granted to avoid injustice.
Masri v Consolidated Contractors International (UK) Ltd (No 3)Court of AppealYes[2009] QB 503United KingdomCited for the principle that an anti-suit injunction can be granted to avoid injustice.
Bank of America National Trust and Savings Association v Djoni WidjajaCourt of AppealYes[1994] 2 SLR(R) 898SingaporeCited for the principles governing the grant of an anti-suit injunction.
Koh Kay Yew v Inno-Pacific Holdings LtdCourt of AppealYes[1997] 2 SLR(R) 148SingaporeCited for the principles governing the grant of an anti-suit injunction.
Société Nationale Industrielle Aerospatiale v Lee Kui JakPrivy CouncilYes[1987] AC 871United KingdomCited for the four basic principles in granting an anti-suit injunction.
Noble Assurance v Gerling-Konzern General InsuranceCourt of AppealYes[2008] Lloyd’s Rep IR 1United KingdomCited for the principle that an anti-suit injunction can be granted to protect interests arising from proceedings before an arbitral tribunal.
Morgan Stanley Asia (Singapore) Pte (formerly known as Morgan Stanley Dean Witter Asia (Singapore) Pte) and others v Hong Leong Finance LtdHigh CourtYes[2013] 3 SLR 409SingaporeCited for the factors relevant to the grant of an anti-suit injunction.
Maldives Airports Co Ltd and another v GMR Malé International Airport Pte LtdCourt of AppealYes[2013] 2 SLR 449SingaporeCited for the principle that the right to have disputes resolved before a contractually chosen court or pursuant to an arbitration agreement can be protected by an anti-suit injunction.
Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace)Court of AppealYes[1995] 1 Lloyd’s Rep 87United KingdomCited for the justification for granting an injunction to restrain proceedings in breach of an arbitration agreement.
National Westminster Bank plc v Utrecht-America Finance CompanyCourt of AppealYes[2001] 3 All ER 733United KingdomCited for the principle that the right to have disputes resolved before a contractually chosen court or pursuant to an arbitration agreement can be protected by an anti-suit injunction.
Continental Bank N.A. v Aeakos Compania Naviera S.A.Court of AppealYes[1994] 1 W.L.R. 588United KingdomCited for the justification for granting an injunction to restrain proceedings in breach of an exclusive jurisdiction clause.
Donohue v Armco Inc & OthersCourt of AppealYes[2002] 1 All ER 749United KingdomCited for the principle that the ends of justice are best served by a single composite trial where substantially the same claims are pursued against related defendants.
Parakou Shipping Pte Ltd v Jinhui Shipping and Transportation LtdHigh CourtYes[2011] 2 HKLRD 1Hong KongCited for the definition of privity of interest.
China North Industries Investment Ltd v ChumCourt of AppealYes[2010] 5 HKLRD 1Hong KongCited for the definition of privity of interest.
King’s City Holdings Ltd v De Monsa Investments LtdCourt of AppealYes[2013] 4 HKC 450Hong KongCited for approval of Parakou.
Rals International Pte Ltd v Cassa di Risparmio di Parma e Piacenza SpACourt of AppealNo[2016] 5 SLR 455SingaporeCited for the principle that allowing non-parties to an arbitration agreement to avail themselves of the right to arbitration would conflict with the doctrine of contractual privity.
Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appealsCourt of AppealYes[2016] 1 SLR 373SingaporeCited for the principle that a court can direct a party to consider offering to arbitrate its claim with non-parties.
Reichhold Norway ASA v Goldman Sachs InternationalCourt of AppealYes[1999] CLC 486United KingdomCited for the principle that judicial case management does not extend to shutting out a plaintiff’s claim in its entirety.
Patel v MirzaSupreme CourtYes[2016] UKSC 42United KingdomCited for the English position on illegality.
Litton v LittonN/AYes3 Ch D 793N/ACited for the meaning of remedy or relief in s 12(5)(a) of the IAA.

13. Applicable Rules

Rule Name
Rules of Court (Cap 322, R 5, 2014 Rev Ed)
Arbitration Rules of the SIAC (4th Ed, 1 July 2010)

14. Applicable Statutes

Statute NameJurisdiction
Civil Law Act (Cap 43, 1999 Rev Ed)Singapore
Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)Singapore
Senior Courts Act 1981 (c 54)United Kingdom
International Arbitration Act (Cap 143A, 2002 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Anti-suit injunction
  • Arbitration agreement
  • Blue Canyon Project
  • Alleged Coup
  • SIAC Arbitration Proceedings
  • BVI Proceedings
  • Thai Proceedings
  • Share Charges
  • Privity of interest
  • Comity

15.2 Keywords

  • Anti-suit injunction
  • Arbitration
  • Singapore
  • Thailand
  • Blue Canyon
  • International litigation

17. Areas of Law

Area NameRelevance Score
Arbitration95
Anti-suit injunction95
Commercial Disputes60
Contract Law50
Private International Law40

16. Subjects

  • Arbitration
  • Injunctions
  • International Law
  • Civil Litigation